Tortoise Media Appeal Dismissed

The Court of Appeal has dismissed the appeal of Tortoise Media against the judgment of Fordham J who, in turn, had dismissed the claim brought by Tortoise Media seeking to enforce its journalists’ rights to information under Article 10 ECHR for information on the Conservative Party’s leadership vote which led to the appointment of Liz Truss as Prime Minister. The appeal raised important issues relating to the exercise of the prerogative power and constitutional law.

In the summer of 2022, during the election process won by Liz Truss, Tortoise Media wrote to the Conservative Party’s CEO, Darren Mott, asking nine questions. Tortoise Media were concerned as to the integrity of the Party’s internal election processes having successfully registered a tortoise called Archie, two overseas nationals, and one fictional person called ‘Margaret Roberts’ to vote.  The Conservative Party declined to answer Tortoise Media’s questions replying, ‘the Party is not a public body and does not carry out public functions’. Tortoise Media therefore issued judicial review proceedings challenging this refusal. 

In these proceedings, since political parties are not public authorities within the meaning of the Freedom of Information Act, Tortoise Media were constrained to seek to invoke the positive obligation arising under Article 10 of the ECHR, via section 6 of the Human Rights Act. This in turn required Tortoise Media to demonstrate that when the Conservative Party elected Liz Truss, the Party was exercising a public function.

In rejecting the appeal Singh LJ held that the election of a party leader was a private matter not susceptible to public law challenge. Singh LJ held that even if there were public law consequences from choosing a leader, those consequences would not make the election process public. In his view, the election of a leader is private because even “public law consequences” are not necessarily enough to show that an underlying function is public. This is because of the ‘nature’ of the internal Party process, particularly that the function being exercised by the Party was not ‘judicial.’  

The judgment can be accessed here.

39 Essex Chambers’ barrister Alan Payne KC (together with Aaron Moss from 5 Essex Court) acted for Tortoise Media, instructed by Fraser McKeating from Lewis Silkin and with additional support provided by Giles Crown from Taylor Wessing.